Citation Nr: 21006844 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 11-05 161 DATE: February 5, 2021 REMANDED The issue of whether the appellant has legal entitlement to basic eligibility for Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The appellant asserts that her deceased spouse (hereinafter, “F.H.”) had recognized guerilla service during World War II, including status as a prisoner of war. F.H. passed away in July 1998, and the appellant subsequently applied for death benefits in August 2009. This matter comes before the Board on appeal from a September 2009 decision denying entitlement to VA benefits due to lack of qualifying service. In August 2012, the appellant testified before the undersigned. A transcript of the hearing has been associated with the record. In October 2012, the Board denied entitlement to benefits due to F.H.’s lack of recognized guerilla service. The appellant appealed to the Court of Appeals for Veterans Claims (Court), which vacated the denial pursuant to an October 2014 Joint Motion for Remand (JMR). The Board subsequently remanded this issue in February 2015 and September 2016 in order to obtain verification regarding the nature of F.H.’s service. 1. The issue of whether the appellant has legal entitlement to basic eligibility for VA benefits is remanded. The appellant continues to assert that her husband, F.H., served as a recognized guerilla during World War II. While the appellant provided documentation from the Philippine Army stating that F.H. was a United States Armed Forces of the Far East (USAFFE) guerilla, these documents do not meet the requirements of 38 C.F.R. § 3.203 as acceptable proof of service as they are not official documents from the appropriate United States service department and are without the official seal. See Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Multiple attempts to certify F.H.’s service have failed to locate his name in the Department of the Army’s reconstructed roster. Since the Board’s last remand, however, the Federal Circuit has ruled that a claimant should have an opportunity to challenge the Department of the Army’s reconstructed roster prior to final adjudication on the merits. In July 2019, the Federal Circuit held that VA cannot “rely simply on the Army’s determination that the veteran’s name does not appear on the reconstructed roster without giving the veteran a meaningful opportunity to challenge his service record.” Dela Cruz v. Wilkie, 931 F.3d 1143, 1152 (Fed. Cir. 2019). The Federal Circuit noted that VA and the Department of the Army represented that they would consider an application filed by purported Filipino Guerillas claiming military service during World War II, including those not currently listed on the reconstructed roster. Such a concession was due to repeated admissions of inaccuracies in the reconstructed roster, including a 1949 Army report noting that many of the original rosters for Filipino units were lost, destroyed, or tampered with prior to the closing of the record. Additionally, officials testifying in Congressional hearings related to the Filipino Veterans Equity Compensation Fund admitted that eligible individuals may have been excluded from the reconstructed roster. As a result, the Federal Circuit determined that claimants should be afforded the opportunity to challenge exclusion from the reconstructed roster prior to a final denial of VA benefits. See, e.g., Reyes v. Wilkie, 780 F. App’x 923, 924 (Fed. Cir. 2019). In the present case, there is no indication that the appellant has sought correction of the reconstructed roster from the Army. On remand, the appellant should be afforded an opportunity to provide any supportive documents with an application to correct F.H.’s military record and challenge his exclusion from the reconstructed roster. The matter is REMANDED for the following actions: 1. Provide the appellant with all of the necessary information in order to apply for a correction of F.H.’s military record with the Army Board for Correction of Military Records. Include the proper address(es) for mailing or filing, the documentation required to support her application, as well as any other pertinent information.   2. Once a reasonable time period has elapsed to file the claim to the Army, if no claim has been filed, readjudicate the issue on appeal and, if necessary, return the issue to the Board. If a claim before the Board for Correction of Military Records is pending, hold readjudication of the issue until a determination is made by the Army. L. B. YANTZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, Counsel The Board’s decision in this case is binding only with respect to the instant matter(s) decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.